"1. It should be of some interest to the appropriate body of the Pennsylvania Bar whether the plaintiff, a lawyer, truly purchased these shares as an investment for his pension plan or merely as a vehicle for this litigation in which counsel fees are sought."

Promptly upon receipt of Judge Duffy's opinion, plaintiff communicated with Judge Duffy, and presented affidavits and documentary evidence which conclusively established: (1) that plaintiff placed the order for the shares in question approximately one hour before the first announcement of the A & P litigation; (2) that upon learning of the litigation, plaintiff attempted to cancel his order for the shares, but was unsuccessful; and (3) that the total amount of plaintiff's purchases of A & P shares on the date in question was approximately $38,000, and not just a "token" investment which might be expected if made for the purpose of litigation. On the basis of these facts, plaintiff repeatedly requested Judge Duffy to set the record straight, by at least excising the offending footnote. Judge Duffy refused to alter his opinion or to remove the footnote, and instead forwarded a copy to the Disciplinary Board of the Supreme Court of Pennsylvania, apparently with the request that they conduct an investigation of plaintiff's conduct in the matter. The Disciplinary Board did investigate the matter, and on November 20, 1973, completely exonerated the plaintiff.

Early in 1974, plaintiff became aware that Judge Duffy's opinion had been published in the Advance Sheets of Commerce Clearing House's "Trade Cases" service. Plaintiff promptly notified CCH of his contention that Footnote No. 1 of Judge Duffy's opinion was false and defamatory. CCH sought permission from Judge Duffy to delete the footnote, but Judge Duffy refused to consent. Thereupon, CCH, at plaintiff's request, revised the first page of the opinion by adding an "editor's note" in juxtaposition to Footnote No. 1, as follows:

"On November 20, 1973, the Disciplinary Board of the Supreme Court of Pennsylvania, acting pursuant to the request of the Honorable Kevin Thomas Duffy and after full investigation and review reached the final determination that Fred Lowenschuss, Esq. was not guilty of unprofessional conduct in violation of the Code of Professional Responsibility."

On or about April 9, 1974, plaintiff became aware that Judge Duffy's opinion appeared in the Advance Sheets of Federal Supplement, published by the defendant. Plaintiff immediately protested to the defendant that Footnote No. 1 was false and defamatory. Defendant communicated with Judge Duffy, Judge Duffy refused to consent to any change in the opinion as written, and the opinion was published without change. Lowenschuss v. Kane, 367 F. Supp. 911 (S.D.N.Y.1973).

This is one of those anomalous situations in which the law as I understand it is so clear that it is difficult to find controlling precedent to the same effect. Nevertheless, the opinions of both the District Court and the Court of Appeals in Garfield v. Palmieri, supra, are persuasive. There, a federal district judge was sued for allegedly defamatory material contained in a judicial opinion. On the basis of a lower court decision under state law, plaintiff contended that the statements in the opinion were only conditionally privileged, and that the privilege had been abused. The court held, however, that federal, not state, law was controlling, and that the privilege was absolute. Of particular pertinence to the present case, plaintiff in Garfield also argued that, even if the opinion as originally filed was within the scope of judicial immunity, the judge's action, several months later, in sending the opinion to West Publishing Company for publication in the Federal Supplement was an independent republication of the original defamation, and was not within the protection of judicial immunity. Rejecting this argument, the Second Circuit, in a per curiam opinion, stated:

"We also hold, with the judge below, that Judge Palmieri's transmission to West Publishing Company, in compliance with West's request, of a copy of his written opinion previously filed in the office of the Clerk of his Court was within the perimeter marking the outlines of the absolute privilege of federal judges against civil liability, an immunity recognized for years as necessary in order that federal judges may act fearlessly in performing their vital responsibilities that include duties in the administration of justice as well as in the deciding of cases. Bar and Bench alike rely upon the West Reporter volumes as sources in which to find the decisions of the U. S. Courts of Appeals and of the U. S. District Courts; and we take judicial notice that an opinion of a federal circuit or district judge is considered 'not reported' until it appears in Federal Reporter or Federal Supplement." (297 F.2d at 527, 528.)

The circuit court also approved and adopted the district court opinion in that case, in which the following appears:

It can thus be appreciated that there are several concepts which enter into the justification for the rule of absolute judicial immunity with respect to the contents of judicial opinions. The judge must be absolutely free to express his views without any possibility that he will be held financially responsible because of the views expressed. The growth and development of the law, and indeed the day to day operation of the entire judicial system, depend in large measure upon the general availability of accurate copies of judicial opinions. In today's world, it is not feasible to attempt to separate the original filing of a judicial opinion from its publication in an official or semi-official publication. When a judge files an opinion, therefore, he knows that it is subject to being published in an official or semi-official reporting service. And, just as a judge's freedom to express his views in judicial opinions must not be constrained by the possibility that he might be held personally liable for the views expressed, the judge's freedom must not be constrained by the possibility that those who publish his judicial opinions might be held subject to liability because of the judge's expressions. Moreover, the ready access to judicial opinions on the part of the legal profession and the public generally, recognized in Garfield v. Palmieri, supra, as constituting independently a complete justification for "republication" immunity for the judge, could not long survive if publishers were held liable on account of the contents of judicial opinions.

Thus, I am satisfied that the absolute privilege based upon judicial immunity would extend to the defendant's publication in this case, even if it were true, as alleged in the complaint, that the defendant selects the opinions which it publishes, and could have rejected Judge Duffy's opinion in this case. The notion that the legal profession and the public generally would have ready and convenient access only to those judicial opinions selected because they contain nothing which could possibly be interpreted as derogatory, is unacceptable. But it is appropriate to note that the plaintiff is simply mistaken in this regard. It is a matter of common knowledge, so clear as to be a proper subject of judicial notice, that the ultimate decision as to which opinions are published in Federal Supplement rests with the courts, not with the West Publishing Company. West publishes all opinions submitted to it by the judges, precisely in the form approved by the judges whose opinions they are. The principles of stare decisis would be fatally undermined were it otherwise.

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